Drug testing in Granite State in focus following scandal in Mass.

Sunday

Nov 18, 2012 at 3:15 AMNov 18, 2012 at 9:23 AM

By JIM HADDADINjhaddadin@fosters.com

DOVER — Sound procedures and firm oversight at the New Hampshire State Drug Laboratory help to reduce the likelihood that a debacle like the one playing out in Massachusetts could occur in the Granite State, according to prosecutors and the lab's director.

Thousands of criminal cases connected to a Massachusetts drug testing lab have been thrown into doubt as a result of the alleged criminal misconduct of a former lab employee.

Annie Dookhan, a chemist at the Jamaica Plain drug lab, is accused of skirting protocols and faking drug test results, presumably to increase her efficiency and burnish her resume.

The Boston Globe reported that Dookhan was skipping a critical first step in the drug testing process, and instead making a preliminary identification of drugs based on how they looked and the identity provided by police. Dookhan allegedly told police she also removed evidence from the lab's secure area without authorization and contaminated samples to make them test positive, the Globe reported.

Officials said Dookhan tested more than 60,000 drug samples involving about 34,000 individuals over a nine-year period. Her alleged malpractice threatens to unravel numerous criminal convictions, and has already led to the release of defendants whose criminal cases involved drug testing.

While the misconduct at the Massachusetts lab was perpetrated by a single employee, its effects have proven widespread because of the vital role drug testing plays in many criminal cases.

“My view is that we cannot do without them,” said University of New Hampshire faculty member Charles Putnam, a former staffer at the state attorney general's office, and co-director of UNH's Justiceworks program. “I don't think courts and juries will rely on the opinions of police officers on the identity of drugs, and I don't think that society is going to say that we're going to legalize heroin and powder cocaine, so the question really is, 'How will we best manage these forensic units?”

In New Hampshire, drug testing is performed at the New Hampshire State Police Forensic Laboratory.

Lab Director Timothy J. Pifer said defense attorneys in New Hampshire have already alluded to the drug lab scandal in Massachusetts during criminal trials to raise doubts in the minds of judges about the integrity of lab testing.

Nevertheless, Pifer expressed confidence that high-quality protocols are in place in New Hampshire to safeguard against harm from a rogue chemist. Pifer said the lab's procedures also underwent a review after the Massachusetts incident came to light.

“I am not aware of any concern about the quality of an analyst's work that has come up internally or externally,” he said.

In New Hampshire, the forensic laboratory was originally established to do things like ballistics testing and fingerprinting, but its role has expanded to include chemical testing of illicit substances.

A toxicology branch of the lab processes testing of alcohol and controlled drugs in a person's body. A separate criminalistics wing tests raw material — such as powders suspected to be cocaine or heroin.

The criminalistics group is staffed by seven full-time analysts, as well as part-time employees. It takes in approximately 600 new drug cases per month, running the gamut from small amounts of marijuana to synthetic drugs. At the minimum, each test requires weighing the substance and analytical work to determine the identity.

The lab also has two full-time quality assurance workers who oversee tests. They perform audits on evidence, and also audit individuals to determine how well they comply with lab protocol. Chemists undergo proficiency tests on an annual basis.

The New Hampshire drug lab is accredited by a licensing board at the American Society of Crime Laboratory Directors. It was last recertified in 2009, and is scheduled to undergo an accreditation review again in 2014.

In the New Hampshire lab, a single analyst is assigned to work a case from start to finish. The analyst is responsible for writing a formal report for the prosecutor and police, and for testifying in court if requested by a defendant.

Evidence is required to be sealed in a way that prevents cross-contamination, and each drug sample is marked with a piece of tape that indicates the initials of the officer that brought the sample in. Samples are then tracked with barcodes and scanners.

Analysts use the barcode scanner to sign evidence out of the vault and take it into their custody. All of the chemical testing and analytical work performed by a chemist is also reviewed by a second analyst.

Another safeguard in New Hampshire is the sheer volume of paperwork generated during drug lab testing, according to Strafford County Prosecutor Tom Velardi.

During the discovery process before a criminal trial, prosecutors are often asked to provide that mountain of documentation to the defendant. That includes even the lab technician's bench notes.

“There's so much documentation in a typical New Hampshire case, not only by one single technician, but it's checked and verified by a second technician, in many instances, by lab protocol,” Velardi said.

One practical problem that does arise is coping with the volume of work that needs to be performed. Adding to the time constraints of lab workers is the fact that defendants have a right to request for lab technicians to testify in court.

“It's a constitutional issue,” Velardi said, explaining that someone accused of a crime has the right to confront the evidence against them. In the case of drug sample testing, that means they have a right for a defense attorney to cross examine the person who conducted the tests.

Lab workers receive an average of 220 subpoenas a month to show up at court on controlled substance cases, Pifer said. In reality, a lot of those cases are pled out, or the technicians don't have to physically leave the building to testify. However, technicians do have to offer testimony in court in about 20 to 40 cases per month, Pifer said.

“Certainly we look at the level and the number of cases coming into the lab each month and the number of cases that are analyzed each month,” he said. “It certainly is a balancing act. We're looking at ways to streamline and make it a more efficient system.”

However, Pifer said the biggest concern facing the lab is the reduction in federal grants coming down the pipeline. The lab has relied on grants in the past to be buy new instruments. “A lot of those federal grant programs are either sun-setting or being significantly reduced,” he said.